101 Va. 739 | Va. | 1903
delivered the opinion of the court.
The controlling question in this case is that raised by the assignment of error to the action of the court in not sustaining the defence of the statute of limitations to the claim asserted by the appellee.
It appears that J. M. Wheeler, Sr., a resident of Lee county, Va., died April 7, 1891, and that on April 10th of that year his son, J. M. Wheeler, Jr., a resident of Virginia, and his son-in-law, C. R. Kesterson, a resident of Tennessee, were appointed' by the County Court of Lee county as his administrators, and duly qualified as such. On June 17, 1895, these administrators-resigned, and on the same day the son-in-law, O. R. Kesterson, was appointed and qualified as sole administrator ck bonis non of the estate.
On the 17th day of Bebruary, 1898, the appellee brought this suit, in the nature of a creditors’ bill, against C. R. Kesterson, administrator, and the heirs of his intestate, to enforce payment of a bond dated May 1, 1888, and payable one day after date, for the sum of $391, executed by the decedent, J. M. Wheeler, Sr., to the appellee, J. B. Hill.
It appears that at the time of his first qualification as administrator, on the 10th day of April, 1891, C. R. Kesterson was a resident of the town of Cumberland Gap, in the State of Tennessee, and that he continued to reside at 'Cumberland Gap up to the time of the institution of this suit. The evidence likewise shows that during this entire period he was the owner of a farm in Lee county, in the same neighborhood in which his intestate and the appellee lived, upon which he spent as much as half of his time. It is clear that although Kesterson was a domestic administrator, he was a resident of a foreign State, and had at no time resided in the State of Virginia prior to the institution of this suit.
Assuming, for the purposes of this case merely, that section 2933 applies as well to the estates of dead persons as to persons who are living, the claim here sought to be enforced is not
In the year 1898 the Legislature amended section 2933, so-as to dispense with prior residence (Acts 1897-’98, p. 441, c. 404; Griffin v. Woolford, supra), and the appellee invokes this-act for his relief. The general rule, in reference to all statutes, is that they are to be so construed as to have a prospective effect merely, and will not be permitted to affect past transactions, unless such intention is clearly and unequivocally expressed. There is nothing on the face of the act in question to suggest that the Legislature intended to interfere with existing-rights. In the case at bar the claim of the appellee was barred before the act of 1898 was passed, and it can hardly be supposed that the Legislature intended to revive claims that were extinct against dead men’s estates, even if it had the power to do so.
In almost all the States of the Union in which the question has arisen, it has been held that the right to set up the bar of a statute of limitations as a defence to a cause of action after the statute has run is a vested right, and cannot be taken away by legislation, either by a repeal of the statute without saving clause, or by an affirmative act; and that it is immaterial whether the action is for the recovery of real or personal property, or for the recovery of a money demand, or for the re
This question has not been directly involved in any case before this court, but in Johnson v. Gill, 27 Gratt. 578, 595, Staples, J., delivering the opinion of the court on the right of the State to pass a stay law, says: “It is very clear that when the bar of the statute has once attached, the .Legislature cannot remove the bar by retrospective legislation.” That point, however, was not directly involved in the case. In Campbell v. Holt, 115 U. S. 620, the Supreme Court of the Hnited States took a different view of the effect of the repeal of a statute of limitation as to a purely personal debt, holding that a debtor had no vested right in a bar interposed to the collection of the debt. There was strong dissent, however, by Mr. Justice Bradley, in which Mr. Justice Harlan concurred. This opinion was published while the revisors of the Code of 1887 were engaged in their work of revision. They did not concur in the majority opinion, and so inserted in the Code, section 2936, which is as follows:
“If, after a right of action or remedy is barred by a statute of limitations, the statute be repealed, the bar of the statute as to such right or remedy shall not be deemed to be removed by such repeal.”
Judge Burks, in his address before the Virginia State Bar Association in 189Í) states that it was intended by this.section to prescribe a rule different from that recently declared by the Supreme Court of the United States in Campbell v. Holt, supra. We do not regard this section as in conflict with section 2933,. as amended, and hence this question is controlled by section 2936.
The appellee further contends that the bar of the statute is repelled by a subsequent acknowledgment and promise to pay the debt, made by the administrator within the statutory period. This position is not tenable.
Eor these reasons, we are of opinion that the debt asserted by appellee, J". B. Hill, against the estate of J. M. Wheeler, Sr., deceased, is barred by the statute of limitations. Therefore, the decrees in this cause, so far as they undertake to establish ■such claim as a valid and subsisting debt, must be reversed and set aside, and the cause remanded for further proceedings to be had therein, not in conflict with this opinion.
Reversed.